State high court rules no privilege in criminal investigations

NEWS MEDIA UPDATE · VERMONT · Confidentiality/Privilege · Aug. 26, 2005

The Supreme Court of Vermont reinstates a quashed subpoena for a television station’s unaired videotape of a riot.

Aug. 26, 2005 · The Supreme Court of Vermont ruled today that journalists have no privilege, qualified or otherwise, to withhold testimony or evidence from criminal investigations, ordering WCAX-TV in Burlington to turn over unaired videotape of a riot to a police inquest.

“In the circumstances of this case, no privilege, qualified or otherwise, excuses WCAX from furnishing the videotape of the riot,” Justice Denise Johnson wrote for the unanimous court.

Johnson called the case “essentially indistinguishable” from the U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes that reporters have no privilege to withhold testimony from grand jury investigations.

“Like a grand jury investigation, an inquest is a process whose purpose is to aid in the inquiry into the existence of probable cause to believe that a crime has been committed,” Johnson wrote. “The fact that an inquest does not involve a distinct body having the power to charge persons with crimes is immaterial. The essential consideration is its role in the investigation of crime.”

WCAX videotaped an October 21, 2004, riot at the University of Vermont following the Boston Red Sox American League Championship victory over the New York Yankees. WCAX broadcast portions of the tape that day, and voluntarily provided University of Vermont police with the aired footage upon request. The following day, before any other investigation, police subpoenaed WCAX’s unbroadcast footage.

Burlington District Court Judge Linda Levitt quashed the subpoena, holding that a qualified First Amendment privilege protects journalists from subpoena unless the information sought is relevant and material to guilt or innocence, and not adequately available elsewhere. Because the police had not exhausted non-media sources of information, Levitt held that they could not overcome the privilege. The Vermont Supreme Court agreed to hear the police department’s appeal and reversed.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case, which was joined by three Vermont newspapers, The Burlington Free Press, The Barre-Montpelier Times Argus and The Rutland Herald, and by The American Society of Newspaper Editors, The Radio-Television News Directors Association and The Society of Professional Journalists.

(In re Inquest Subpoena (WCAX), Media Counsel: Eric S. Miller, Sheehey Furlong & Behm PC, Burlington, Vt.) — GP

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